USCIS to Reopen Unlawful Presence Waiver Applications Denied Due to Criminal Offenses

Provisional Unlawful Presence Waivers

In March of 2013 the United States Citizenship and Immigration Services (“USCIS”) implemented a program where relatives of U.S. citizens could apply for unlawful presence waivers if they met certain requirements. While the USCIS created these waivers, they also limited the applicants by listing circumstances that would render an individual ineligible for a provisional unlawful presence waiver. The USCIS can deny a waiver application if the USCIS has reason to believe that the individual is subject to another ground of inadmissibility, in addition to the unlawful presence ground that is the subject of the I-601A waiver application.

Prior to the USCIS release, waiver applications were being denied if an applicant had any criminal history. The sentence imposed was irrelevant and it was not controlling whether or not the offense was a crime involving moral turpitude. On January 24, the USCIS issued guidance relating to applicants who had a criminal record. The USCIS field guidance provided that if the applicant’s criminal offense fell within the petty offense or youthful offender exception then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility at the time of the immigrant visa interview solely on account of that criminal offense.

Reopening of previous applications

Starting on March 18, 2014, the USCIS began the process of reopening all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible. For more information, you can view the USCIS website here.

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